Pavel Durov and Free Speech
Synopsis: The question to be decided in the case of tech billionaire Pavel Durov has less to do with free speech and more to to do with whether social media platforms can be held responsible for their role in providing a safe haven to online criminal conduct. Nor are the most outspoken defenders of Durov sincere in their panegyrics for him and opposition to his detention on the grounds of free speech. They are unified by two things - first, opposition to Ukraine and support for the Telegram's assistance to Russian aggression. Second, they exhibit selective outrage about free speech. They insist on a broad, undefined vision of free speech for themselves and social media elites, but are willing to fight against those whose “free speech” threatens them or their empires. The correct answer for Americans is to return to a consistent constitutional definition of free speech based on the Founders vision for our Republic. The historic approach avoids the excess and danger of government control over political speech, avoids redefining criminality on the basis of trendy political movements, but does not give safe harbor to historically recognized criminal behavior.
This week the French government detained Russian-born billionaire founder of Telegram, a messaging app with more than 900 million users. Telegram is known for its secure messaging and unfiltered content. It has become the principle messaging device of the Russian invaders in Ukraine. Now the detention of Durov has launched a debate about freedom of speech and illegal content on the internet.
The issue of government censorship of political speech is a real emerging issue in the United States and the world, but the Durov case is less about free speech vs. censorship, or Left vs. Right, and more about culpability for criminal conduct which is outside the pale of free speech. Specifically, are platform providers responsible when they knowingly give secure messaging and broadcast services to criminal elements engaged in unprotected speech?
Dissent on Durov
Two groups have politicized Durov’s detention: The first is represented by Russian-sympathetic, anti-Ukraine commentators like RFK, Jr, Tucker Carlson and tech giant Elon Musk. They see the detention of the Russian billionaire as an extension of the global Deep State and its attempt to crush the opposition. Their message is "free speech at all cost." This group is attempting to paint Durov as a free speech advocate who stands alone against the Kremlin and Washington. This characterization appears off base. Despite a moment in 2014 when Durov refused to hand over information to Moscow and exited the country,, the multi-passport holding tech giant he has travelled to Russia more than 60 times between 2014 and 2021.
The second group is the Russian military waging the war on Ukraine. Telegram is an important means of communication for the Russian army. With Durov in custody, Russians have two concerns. First, they are panicking about what secrets could be disclosed to French intelligence. Second, they worry they will lose their ability to securely communicate in the field. Andrei Mevedev, a leading Kremlin propagandist on Russian television said: “Telegram has been the main messaging app of this war.”
On the other hand, cries from Carlson, RFK, Jr., Musk and the Kremlin are falling flat from the victims of criminal conduct like Russian terrorism, advanced through the Durov’s Telegram platform. Roman Sheremata of the Ukrainian American House observed that: “No, he is not a free speech advocate…Durov has enabled terrorist groups and drug dealers around the world to commit hideous crimes. That is not a freedom of speech…Telegram is a central recruiter for Russian military intelligence and the main channel of russian propaganda. Not surprisingly, after the arrest of Durov, Russian officials were ordered to delete all official correspondence in Telegram.”
At this point, Durov has not been charged with a crime. He is being held by French authorities for questioning over his failure to respond to demands related to 12 offenses including complicity in running an online platform used for organised crime, child pornography, drug trafficking, large-scale fraud, money laundering and illegal encryption services, none of which are protected speech.
Is Free Speech on the Table?
I practiced constitutional law for some years and studied First Amendment law under Judge Robert Bork who was famously rejected by the Senate for Reagan’s appointment to the Supreme Court to succeed Justice Lewis F. Powell, Jr.. I am a free speech advocate. I share the concern of many that the last half decade have brought unprecedented assaults on free speech in the United States. The issue is close to home.
There are two legal issues on the table in the Durov case.
First, what constitutes free speech?
Second, is a social media platform and its owners responsible for abuse of the platform by users?
The Free Speech Issue
On the question of free speech, Bork provided a helpful paradigm: There is not, nor ever has been, an absolute right to free speech. The Framers intended to protect one thing - political speech. The purpose of the First Amendment free speech clause was to prevent scenarios where the government attempted to censor political views which challenged their hegemony.
There is no free speech right under American law (or French law) to disseminate pedophilia content, to facilitate and coordinate acts of terrorism, or to spread content integral to criminal conduct. Durov is being investigated for his role facilitating the promotion of all three on Telegram. Some of this interfaces with Russian criminal activity against Ukraine.
The weight of historical evidence supports Judge Bork’s thesis. For example, while political speech motivations exists behind those who vandalize famous works of art in the name of climate change, there is no right of speech which trumps the criminality pf their behavior. Destroy the Mona Lisa to save the whales and you should go to jail. Similarly, platforms which refuse to be self-governing and become willing staging grounds for acts of terror, criminal enterprise, or pedophilia can not throw themselves on the horns of the alter of free speech when called to account.
In short, the Durov case is not about his right to free speech. That argument is a red herring.
The User Generated Content Issue in the USA
A more complicated question is the second - Should social media hosts be held to account for providing platforms for others to engage in unprotected speech like criminal conduct?
The short answer is that American courts have ruled that platforms may host speech without interference from the government, with a few narrow exceptions for some kinds of illegal speech such as child pornography. Last year the Supreme Court ruled on two Section 230 cases with far reaching implications for tort law and national security. The Court decided to not hold social media companies such as Facebook, Twitter, and Google liable for certain criminal content published on their platforms by users. The Supreme Court provided a very wide berth of non-culpability for user generated content, making platform culpability for criminal content a bit murkier to decipher.
In the United States, here is what this means: Users engaging in unprotected speech of a potentially criminal nature on social media platforms ARE subject to prosecution if they can be found, but the providers ARE NOT typically responsible for that content. The Court’s ruling had less to do with free speech rights, and more with practicality: How do platforms police trillions of items of content? Expect this decision to be challenged, modified and revised in the years to come. That being said, the French government is investigating several categories of speech (like pedophilia) which are non protected in the United States, and, if proven true, would pierce the veil of non culpability for Durov in an American court.
French Law and the European Union
The French and the European Union are governed by different standards. For example, by criminalizing broad categories of "hate speech," the French have gone beyond the United States which has unanimously reaffirmed that there is no 'hate speech' exception to the First Amendment.
But "hate speech" is not the issue in the Durov case. Also, France is a civilian legal regime, not a common law regime like the United States and Great Britain. This means they are governed more by statutory rulings than common law guidelines.
In the last two years both France and the EU have developed laws and guidelines, quite different from the US, which hold content providers accountable for certain user generated content. They are cracking down on some forms of expression, including terrorist speech, child exploitation imagery, disinformation, and divisive rhetoric which could be deemed to create offline harm. Under these guidelines Durov could be convicted and sentanced for his role giving aid and cover to online criminal and terrorist elements. But at this point he has not even been charged with a crime.
The Future
Protected speech is political speech, a term which is broadly defined to include religious speech. Speech which advances a criminal purpose is not protected. We do a disservice to the doctrine of free speech when we invoke it to protect terrorists, criminals and defamers.
Culpability for content providers for their user generated content provides a matrix of stormy seas to navigate. American law on this subject is in a transformative moment. But allowing content providers to give safe harbor to terrorists and criminal elements, thus becoming de facto accomplices, is not an acceptable result. Expect more litigation in America and abroad on the issue of platform culpability for user generated content.
We simply need to keep in mind that platform responsibility is a separate question from whether or not it is legal for users themselves to use platforms to advance criminal enterprises.
Why the Defense of Durov by Musk and Crew is Especially Untasteful
In the midst of this controversy, the most unsavory elements are social media elites like Carlson, Musk and other defenders of Durov telling the world that a poor Russian billionaire whose platform has facilitated the unlawful killings of tens of thousands of Ukrainians being persecuted for exercising his free speech.
No, he is being investigated under French and EU law for knowingly facilitating crimes.
Few thoughtful advocates of free speech would argue that there is absolute protected right to say anything you want. Note that Elon Musk, through his X Corp. sued Media Matters for America for defamation when they ran ads on X next to pro-Nazi content. The ads triggered a mass exodus of advertisers which damaged Musks reputation and business. Not surprisingly, the defendants in the case made a First Amendment “free speech” argument which Musk opposed. Most would agree that you can’t shout fire in a crowded firehouse, you can not defame others and the promulgation of child pornography is not a free speech right.
Nor can Durov himself claim to be an absolutist defender of “free speech.” In 2018 he endured a brief nationwide Russian restriction on his platform when he refused to share encryption keys with the modern day version of the KGB, the FSB. But in 2021, Durham capitulated to Kremlin demands to block an account created by the team of opposition politician Alexei Navalny.
There are two common denominators from the crowd shouting “free speech” for Durov. The first is that they are selective in their outrage. The second is that the most outspoken members of this de facto coalition oppose Ukraine and support the Russian invasion.
The irony is palpable - When pro-Invasion Russian media oligarchs get busted for hosting criminal enterprises, there is wailing and gnashing of teeth from this Greek Chorus. But when Russia daily and brutally stamps on the free speech of millions…crickets.
DW Phillips is a constitutional attorney, writer and film director for Ukraine Story. He studied First Amendment law under Judge Robert Bork.
